JobKeeper information

Information on the JobKeeper scheme for national system employees

This information is current as of 1 May 2020. Laws and other rules are changing quickly due to the coronavirus. While we are doing our best to keep our information current, it’s possible that changes may have occurred since this information was published. The following is general information and not legal advice.

JobKeeper summary

The JobKeeper payment scheme has been introduced by the federal government to help reduce the wage costs of businesses affected by the coronavirus.

Businesses with significantly reduced incomes can claim $1500 per fortnight for each eligible employee.

JobKeeper is a payment to businesses, not employees, and you don’t receive any money directly from the government. Your employer is still responsible for paying your wages but the government will reimburse them.

The reimbursement amount is $1500 per fortnight, and your employer must pay you at least $1500 per fortnight, if they are claiming reimbursement under JobKeeper.

New laws allow your employer to give you certain directions while they are claiming JobKeeper for you. For example, your employer may reduce your hours, or change your work duties, where this is reasonable and authorised under the laws. Agreements may also be made under these new laws.

There are a number of protections for employees, to ensure that these directions and agreements are not misused by employers.

We encourage you to read all of the information below, as JobKeeper is a new scheme and the rules are not well known. However, if you have a specific issue you might want to jump to that section first.

If your employer applies for JobKeeper, they must show a certain loss of income to be able to claim reimbursement for wages. For most businesses, this is a 30% reduction for a particular period, as compared to the same period last year.

Your employer (if eligible), can only apply for JobKeeper for you if you meet the following requirements:

you are currently employed by an employer that is eligible for JobKeeper;

you were employed by your employer as at 1 March 2020;

you were at least 16 years old on 1 March 2020;

you were an Australian resident, or on a permanent visa, or or on a subclass 444 visa as at 1 March 2020;

you are not a short-term casual (long-term casuals are still eligible. Long term casuals have worked on a regular basis for at least 12 months for the employer);

you are not working for another employer that’s claiming JobKeeper for you;

you are not on parental leave or dad and partner pay; and

you are not unable to work and on workers’ compensation.

For further information about eligibility for JobKeeper, you can contact the Australian Tax Office or visit their website.

BREAK

I was made redundant or dismissed – can I be re-hired under JobKeeper?

As long as you were employed on 1 March 2020, your former employer has the option of re-hiring you and paying you under JobKeeper (provided that you and your employer meet all the eligibility criteria – see above).

You don’t have a right to be re-hired, but you can ask your former employer. They may not be aware that JobKeeper can help them to re-hire you at a low cost.

BREAK

I think my employer is eligible but they are not claiming JobKeeper for any employees

JobKeeper is a government scheme to help employers stay in business by subsidising wages. Employers do not have to participate if they don’t want to.

If you have been dismissed after 1 March 2020, or you are worried about your job, you might want to ask your employer about JobKeeper. They might not be aware that it could help them re-hire you or keep you on.

If your employer is considering making you redundant, or asking you to reduce your hours or wages (or make other changes to your work) as a result of the coronavirus, it would be reasonable to ask your employer if they have considered JobKeeper.

You should ask in writing so there is a record of your request and their response.

If you don’t agree to the types of changes that your employer is proposing to make to your employment, your employer’s failure to claim JobKeeper (if eligible), might be relevant to determining the reasonableness of their requests for change.

Similarly, if you are made redundant, your employer’s failure to claim JobKeeper might be relevant to determining whether the redundancy was genuine or not.

BREAK

What if my employer is claiming JobKeeper for other employees but not me?

If you haven’t already done so, you may wish to ask your employer why they aren’t claiming JobKeeper payments for you. It may be that you are ineligible (for example, you are a short-term casual).

The government has stated that they intend for JobKeeper to be a “one in all in” scheme, and that participating employers must claim JobKeeper for all eligible employees.

If your employer is claiming the JobKeeper allowance for you, you should be paid a minimum of $1500 per fortnight (before tax).

So if your hours have been reduced under a JobKeeper direction (explained below), even to nil, you should still be paid $1500.

However, if you have worked enough hours that your wage is higher than $1500 for the fortnight, you should be paid the higher amount.

Generally, you cannot be paid a lower hourly base rate than you were paid before JobKeeper. Even if your duties have been changed under a JobKeeper direction, your hourly rate cannot be reduced.

However, if your new duties entitle you to a higher hourly rate – you should be paid the higher rate.

Keep in mind that although your hourly base rate can’t decrease, your overall fortnightly pay might be less under JobKeeper. This is because your employer can use a JobKeeper enabled direction to lawfully reduce the amount of hours you work. However, your fortnightly pay cannot be reduced below $1500.

BREAK

My employer is threatening not to claim JobKeeper unless I agree to changes at work

Generally, your employer cannot change your contract of employment without your agreement. Unless your contract authorises the changes, it’s likely you can lawfully refuse the changes. If you are subsequently fired or otherwise punished for refusing the changes, you might be able to make an unfair dismissal or general protections claim.

However, there is no way to force your employer to claim JobKeeper for you. While you should not agree to permanent changes you don’t want, you need to consider your employer’s motivations in requesting changes.

If you think the changes are necessary because of a downturn in your employer’s business, it may be that your employer is presenting them as an alternative to redundancy. If you are genuinely made redundant after refusing changes, it may be difficult to make any sort of claim against your employer (although you might be entitled to redundancy pay).

Remember that your employer isn’t eligible for JobKeeper payments unless they have experienced a significant business downturn.

One option is to agree to your conditions of employment being changed on a temporary basis and recording this in a written document, so you can agree with your employer’s changes but still preserve your original contract.

Alternatively, you may wish to ask your employer to wait until they are receiving JobKeeper payments and then give you a “Jobkeeper enabling direction” to make the changes. “JobKeeper enabling directions” are directions the employer is allowed to make under certain circumstances if they are claiming the JobKeeper payment. These directions are temporary and do not require a change to your contract. See below for more information on JobKeeper enabling directions.

Remember that JobKeeper is a “one in, all in” scheme. So if you are an eligible employee, your employer cannot exclude only you from JobKeeper. If they wish to participate in the scheme, they must claim on behalf of all eligible employees, and pay all those employees the full amount.

I’m being paid under JobKeeper and my employer wants to make changes to my employment (hours of work, job duties and locations of work)

If your employer is claiming JobKeeper and wishes to make changes to your employment, they should give you temporary “JobKeeper enabling directions”, or ask you to make an agreement knowns as a “JobKeeper enabling agreement”.

In most situations, there’s no good reason why a permanent change to your contract is necessary. If your employer is not using JobKeeper laws to make changes, you may wish to ask them to explain why.

Even if your employer is using JobKeeper laws to make changes, there are certain rules they should follow.

First, any JobKeeper enabling direction must be in writing and must be reasonable in the circumstances. Your employer cannot “misuse” a direction by going outside the rules. Your employer must also give you notice about the direction and consult with you before making the changes.

There are further rules for specific types of directions and agreements:

Reduction in work hours (stand-down)

Your employer can use a JobKeeper enabling stand-down direction to direct you not to work on one of your usual days, to direct you to work for a shorter period on a particular day, or to reduce your hours overall, including to nil.

However, your employer can only give you a JobKeeper enabling stand-down direction where:

you cannot usefully be employed for your regular days or hours;

because of changes to the business as result of:

the coronavirus pandemic; or

government initiatives to slow the transmission of the coronavirus.

You must still be paid a minimum of $1500 per fortnight, even if your hours are reduced (including where they are reduced to nil).

Note that a stand-down direction doesn’t allow your employer to change which days or times you work (for example, ask you to work on a Wednesday when you normally don’t). However, there is a type of agreement (see below) that allows your employer to request changes to the timing of work hours.

Change in work duties

Your employer can use a JobKeeper enabling direction to change your duties of work if:

the duties are safe, including in relation to the coronavirus;

the duties are within your skill and competency;

you have any licences or qualifications necessary to do those duties; and

the duties are reasonably within the scope of the employer’s business operations.

This means that you should only be asked to perform work which is part of what the business usually does, and that’s within your ability and skill set to perform.

Change in work location

Your employer can use a JobKeeper enabling direction to change your work location if:

the new location is suitable for your duties;

the new location does not require you to travel an unreasonable distance;

it is safe for you to perform your duties at the new location, including with regard to the coronavirus; and

the new location is reasonably within the scope of the employer’s business operations.

Change in work hours (by agreement only)

This section refers to changes to the days and times that you perform your work, not to reductions in work hours. For reductions in work hours see, “Reduction in work hours (stand-down)”, above.

Your employer cannot direct you to change which days and hours you work under JobKeeper.

However, they can make a request for you to change your work hours. You must consider the request, and you cannot unreasonably refuse the request.

In other words, you have to think about it, and can only refuse if you have a good reason. For example, you may have family or carer’s responsibilities that make it difficult for you to change your hours of work.

My employer wants to increase my work hours

Your employer may request that you increase your hours of work using a JobKeeper change in work hours agreement. However, you can reasonably refuse, for example, if you have family or carer’s responsibilities that prevent you working additional hours.

Regardless of any agreements made, an increase in hours should not breach minimum conditions of employment.

Under these minimum conditions, you can only be required to work 38 hours plus “reasonable additional hours”. Whether additional hours are reasonable depends on a number of factors including safety, pay and family responsibilities. For more information see our factsheet on minimum conditions of employment.

BREAK

My employer wants me to take annual leave

Your employer cannot use a JobKeeper enabling direction to require you to take annual leave.

However, they can make a request for you to take annual leave which you must consider, and cannot unreasonably refuse.

In other words, you have to think about it, and can only refuse if you have a good reason.

Your employer cannot make this type of agreement with you if it would result in you having less than 2 weeks of annual leave left.

You can also agree with your employer to take twice the amount of annual leave at half pay.

Keep in mind that these rules relate to annual leave agreements under JobKeeper. The general rules on annual leave under the National Employment Standards still apply. These allow your employer to require you to take annual leave where the requirement is reasonable. This could includea business shut-down or where you have accrued excessive leave.

It’s not clear how all these rules will interact with each other. If you are being directed or pressured to take annual leave and you don’t want to, you may wish to seek legal advice. You can contact us first to see if you are eligible for our legal advice services.

BREAK

My work hours, work duties, work location or pay have been changed without a JobKeeper direction or agreement

It is lawful for you and your employer to agree to changes to your employment, regardless of whether these changes are being made under JobKeeper or not.

If you did not agree to the changes and they were made without a JobKeeper enabling direction or agreement, there may have been a breach of your contract. If you have been working under the changed conditions, this may be seen as you agreeing to the changes. This is called “acquiescence”.

Depending on the way the changes occurred, they may form a new permanent contract, or they may be considered a temporary change to your contract. To determine which, it’s likely you need legal advice.

If you are concerned, you may wish to ask your employer if you can agree in writing that the changes are temporary. Alternatively, you may wish to ask that your original contract is reinstated in writing and that the changes are instead authorised by a JobKeeper enabling direction or a JobKeeper agreement.

BREAK

My employer is using the threat of withdrawing JobKeeper payments to punish me at work

If your employer is claiming JobKeeper on your behalf, they must pay you the minimum JobKeeper payments. Your employer cannot choose to withdraw you from JobKeeper, unless you direct them to, or they choose to withdraw from the scheme entirely. If your employer is claiming JobKeeper but not paying you the $1500 per fortnight (and you are eligible), you should contact the Fair Work Infoline or seek legal advice. You can contact us first to see if you are eligible for our legal advice services.

If your employer is threatening to withdraw JobKeeper payments to punish you, they may be breaching the general protections section of the Fair Work Act.

If you are not satisfied with your employer’s response, you may wish to contact the Fair Work Infoline or seek legal advice. You can contact us first to see if you are eligible for our legal advice services. This may help you to determine if your employer is in breach of the Fair Work Act or not, and therefore, what you should do next.

If you cannot resolve the issue with your employer directly, you may wish to make an application to the Fair Work Commission to deal with a dispute under Part 6-4C of the Fair Work Act (this is the Part that deals with JobKeeper enabled directions and other matters related to JobKeeper).

The Fair Work Commission can deal with the matter in a number of ways, including by mediation and conciliation. They may issue a number of orders to resolve the matter, including by setting aside (canceling) a JobKeeper enabling direction or substituting a new direction.

Disclaimer

By using this publication and the information* contained within it, you agree that:

The Employment Law Centre of WA (Inc.), and its directors, employees and agents (ELC), do not accept responsibility for any consequences, including loss and/or damage, arising from your access to, or use of, the information contained in this publication, or from your reliance on any materials contained within this publication.

While the information has been formulated with all due care, ELC does not guarantee the accuracy, currency, reliability or correctness of any of the information, nor that the information provided is exhaustive. This publication, and all the information therein, is intended to be for informational purposes only and is not intended to provide or replace specialist legal advice.

ELC does not accept responsibility for the accuracy, currency, reliability or correctness of any information included within the publication that has been provided by third parties, including third party website links.

None of the information or materials provided within this publication may be used, reproduced or transmitted, in any form or by any means, without written permission from ELC.

Ultimately, you use this publication, and the information contained within it, at your own discretion and risk. You accept as a condition of your use of this publication and the information contained therein that you will make no claim for any loss, damage or expense that may arise from your use of this publication, or your reliance on any of the information contained within it.

If you have concerns or questions about any of the above, you should contact ELC for assistance on 1300 130 956 or 9227 0111.

*Information includes any and all data, documents, pages and images.

The Employment Law Centre of WA (Inc)

We acknowledge the Australian Aboriginal and Torres Strait Islander peoples as the traditional custodians of the lands where we live, learn and work, and particularly the Whadjuk people of the Noongar Nation, traditional custodians of the land where our office is located. We acknowledge and respect their continuing culture and the contribution they make to the life of this nation, and we pay deep respect to Elders past and present.